Manuela Morganti Claimant v [1] Silkincrest Investment Ltd (dba Silkencrest Ltd) [2] Abi Development Company Ltd Defendants [ECSC]
| Jurisdiction | Antigua and Barbuda |
| Judge | REMY J. |
| Judgment Date | 17 May 2011 |
| Judgment citation (vLex) | [2011] ECSC J0517-1 |
| Court | High Court (Antigua) |
| Docket Number | CLAIM NO:ANUHCV 2009/0195 |
| Date | 17 May 2011 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CLAIM NO:ANUHCV 2009/0195
By a Claim Form and Statement of Claim filed on 7th April 2009, the Claimant claims against the Defendants damages for breach of contract, together with monies paid by way of deposit for the purchase of a property beneficially owned by the First Defendant and registered in the name of the Second Defendant (the property). The Claimant also claims special damages, costs and interest from the Defendants.
The factual contentions giving rise to this case are relatively straightforward. The Claimant, a retiree and a citizen of Italy, saw an advertisement for the sale of properties in a residential development called Weatherills situate in St. John's, Antigua (the Development). She contacted the Second Defendant, who was marketing the Development and subsequently entered into discussions with Mr. Maginley, a representative of the Second Defendant regarding the property. Mr. Mgginley introduced the Claimant to a principal of the First Defendant, namely Jessica Dyett and her husband Norman Dyett who happened to be the builder of the property. On or around 26th June 2006, the Claimant entered into an agreement for the sale of the property with the First Defendant as a beneficial owner and the Second Defendant as the registered proprietor of the property.
The terms of the agreement for sale required the First Defendant to execute certain works to the property. The First Defendant agreed to allow the Claimant to take possession of the property prior to the completion of the works and upon payment of the Deposit, but prior to the Claimant completing payment of the same. The Claimant alleges that, on or around September 22nd 2006, whilst she was off island, the property burgled and a number of appliances and pieces of furniture belonging to her as well as the generator that had been loaned to her by the First Defendant were stolen.
The Claimant further alleges that, on or about September 25th 2006, Norman Dyett visited the office of the Claimant's Attorney at Law and verbally informed the Attorney of his intention to retrieve the generator and of the First Defendant's intention to terminate the Agreement. Norman Dyett was then informed of the burglary and the loss of the generator. That visit was followed by a telephone call from Norman Dyett on September 26th, 2006, in which he repeated the First Defendant's position in regarding the termination of the agreement. The Claimant treated the termination as a repudiation of the agreement, accepted the termination, and vacated the premises.
The Claimant subsequently requested the refund of the $66,500.00 deposit which she had paid to the First Defendant, but that request was refused. The Claimant also seeks compensation from the Second Defendant for the misrepresentation by its representative that induced her to enter into the agreement with the Defendant.
In her Statement of Claim, the Claimant pleaded that sometime in April 2006, she contacted the Second Defendant regarding an advertisement for the sale of the property, and that shortly thereafter; she commenced discussions with one of its representatives, a Mr. Kirthey Maginley (Mr. Maginley), with a view to purchasing the same. The Claimant stated that through its agent Mr. Maginley, the Second Defendant represented to her that the properties in the development, including the property under negotiation were for sale with certain standard features and that there were also there were optional features.
The Claimant pleaded further that she opted for the property with the standard features. She stated that in or around May, 2006, Mr. Maginley arranged for her to view the property and introduced her to Mrs. Jessica Dyett and her husband Mr. Norman "Rocco" Dyett. The Claimant alleges that during the viewing, she was shown a number of areas of the property that required additional work and was advised that Norman Dyett would be responsible for completing the same. The Claimant in her pleadings contends that Mrs. Dyett expressly advised her that her husband Norman Dyett was "in charge of everything."
The Claimant pleaded that she understood and believed that Mr. Dyett was the agent of the First Defendant and was authorized to take decisions on behalf of the First Defendant regarding the property as well as the parties' relationship. She added that after being introduced to Mr. and Mrs. Dyett, she dealt exclusively with Norman Dyett and had no further communication with either Jessica Dyett or with Mr. Maginley regarding the property.
The Claimant pleaded that, in reliance on the representations of the Second Defendant and/or its agent, she executed an agreement with the Defendants on or around June 26th, 2006 (the Agreement). The Agreement provided, among other things for the payment of a 10% deposit and for payment of the balance of the purchase price in equal installments payable on the last day of 6 consecutive months. She pleaded that certain works were due to be completed on or before July 31st 2006.
The Claimant alleges that she paid the deposit to the firm of Cort & Cort, (the firm) as escrow agent, and later tendered a second payment to the firm. The Claimant's pleadings further allege that the Agreement also provided that certain works were due to be completed on or before July 31st 2006 and that in or around March of 2006, the Claimant, upon payment of the Deposit and with the consent of the First Defendant, went into possession of the Property. The Claimant contends that Norman Dyett provided her with a generator for the temporary provision of electrical power at the premises and for completion of the works. She alleges that by July 31st 2006, Mr. Dyett had failed and/or refused to complete several of the works as were required under the Agreement, as a result of which the Claimant engaged the services of Septimus Rhudd, Attorney at Law regarding the completion of the transaction for the purchase of the Property.
The Claimant further pleaded that on or about September 5th 2006, she traveled to Italy and that prior to her departure, she the Claimant notified Norman Dyett of her departure and expected date of return. The Claimant contends that she requested that the remaining work at the premises be completed prior to her return and that Norman Dyett remained in possession of keys to the premises to facilitate his completion of the works stipulated in the Agreement. The pleadings further allege that between the evening of Friday 22nd September 2006 and the morning of Saturday 23rd September 2006, the premises were burgled and all of the Claimant's kitchen appliances, several pieces of furniture and a generator were taken from the property.
The Claimant further pleaded that on Monday 25th September 2008, Norman Dyett visited the chambers of her Attorneys at Law and verbally informed them that he would be removing the generator from the premises at Silkencrest and "was no longer prepared to complete the sale and wished to terminate the agreement." The pleadings state that Norman Dyett was immediately informed of the burglary and the disappearance of the generator and he was requested to supply particulars of the generator so that the same would be provided to the police for the purposes of investigation. The Claimant avers that the following day Norman Dyett telephoned the Claimant's Attorneys and repeated the First Defendant's position regarding the termination of the Agreement and demanded that he be compensated forthwith for the generator taken from the property. She alleges that Norman Dyett also demanded that the Claimant's belongings be removed from the house. The Claimant pleaded that her Attorneys reminded Norman Dyett that she was out of the State and suggested that the First Defendant defer its actions regarding the Claimant's demand to vacate the Property until her return the following month. The Claimant contends that Norman Dyett refused, and stated that "we "had another buyer and that the Agreement was "off'.
The Claimant pleaded that after being notified by her Attorneys of the First Defendant's decision to terminate the Agreement, the Claimant accepted The First Defendant's repudiation of the same. The Claimant pleaded that as at the date of the termination of the Agreement by the First Defendant, the works listed under Schedule 3 of the Agreement had not been completed and that on or about 29th September, 2006, the Claimant's Attorneys wrote to the Second Defendant and to the firm notifying them of the termination of the Agreement by the First Defendant and the Claimant's decision to treat the contract as repudiated.
The Claimant further pleaded that by letter dated October 6, 2006 the firm wrote to the Claimant's Attorneys on behalf of the First Defendant denying that Norman Dyett was authorized to act for the First Defendant and also advising that the First Defendant denied any breach of contract on its part. The pleadings go on to state that on October31, 2006, the firm tendered payment of the sum of $99,750.00 to the Claimant's Attorneys and retained the deposit of $66,500.00. The Claimant avers that despite her demand for the refund of the retained sum, the firm has failed and/or refused to repay the funds or any part thereof to her and that by the failure and/or refusal of the First Defendant and/or its agent to complete the works stipulated in the Agreement, the First Defendant breached its agreement with the Claimant and is liable in damages for the said breach. The Claimant also pleaded that The First Defendant also breached the agreement when it terminated the same.
The Claimant...
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